Volume 12 — New Jersey Law Reports

<p>In an action of debt on bond conditioned to keep within the prison limits, a plea in bar admitting that the defendant had walked ont of the limits, but alleging that the plaintiff, the sheriff, had sustained no damage thereby, is bad on demurrer.</p> <p>If the condition, of such a bond substantially conforms to the form prescribed by the statute, it is sufficient, though there may be a verbal differ» ence.</p> <p>If the breach assigned in the declaration is according to the sense and .substance of the condition, it is sufficient.</p> <p>It is not lawful for a defendant to avail himself of the same matters by way of special plea, and of notice under the general issue.</p> <p>A notice of a motion to strike out a notice of special matter subjoined to a plea of the general issue, is in the nature of a demurrer.</p> <p>A notice subjoined to the general issue, stating in substance, “ that after the making of the bond on which the suit was brought, there was an agreement between Allen the debtor, and Clark the creditor, at whose suit he was in confinement, by -which Allen was to give Clark certain promissory notes and a small sum of money, and the latter was to satisfy all judgments in his name against the former, and to discharge him from imprisonment under the capias ad satisfaciendum mentioned in the bond, and to release him and his sureties from the bond; that in pursuance of the agreement, Allen did give to Clark the notes and the money, and that Clark afterwards, in fulfilment of the agreement, discharged Allen *from his imprisonment under the said writ, and released him and his sureties from the said bond ; and that by reason thereof, he walked out of, and departed the rules and bounds of the prison, which is the same supposed breach mentioned in the declaration,” is sufficient to form a prima facie defence, and therefore will not be ordered to he stricken out.</p>

<p>A deed from a person haying the previous possession, purporting to convey the premises in fee simple to the husband, and a possession of the husband for three years under such deed, are prima, fa tie evidence of the seizin to entitle the demandant in dower, to recover, unless repelled by the proofs of the tenant.</p> <p>A seizin by the husband for any period of time during the coverture, however short, will be a sufficient foundation for the title to dower, unless it be a transitory seizin, as it is called, or a seizin for an instant, as 'where the same act which gives him the estate conveys it .also out of him, or where he takes a conveyance in fee, and at the same time mortgages the land to secure the purchase money.</p> <p>A recital in a deed cannot operate on a person who is neither party nor privy to it.</p>

<p>If a party is unlawfully deprived of a trial by jury, by the conduct of the justice, or of the adverse party, or of the constable, a just ground of reversal is shewn ; but if by his own misconduct, ho has no cause of complaint.</p>

<p>A judgment operates as a lien upon the real estate of the defendant from the time of the actual entry of such judgment on the minutes or records of the court; and if an attachment be afterwards sued out against the defendant, by virtue of which his real estate is attached, the lien created by the judgment, is not thereby devested, nor is the sheriff prevented from selling the same upon a fieri fiadas subsequently issued on said judgment.</p> <p>An attachment has not the same binding force and effect as an execution.</p>

<p>A writ of certiorari will not lie to remove into the Supreme Court the proceedings of arbitrator?, (who have made and published their award) for the purpose of setting aside the award.</p>

<p>It ought to appear upon the face of the deed, under the oath of the witness in the certificate of the officer before whom the deed is proved, that the person called to prove the deed is a subscribing witness. The statement of the officer, that he is such subscribing witness, when the fact does not appear, either in the oath or on the deed, is ineffectual.</p> <p>The record of a deed purporting to have been proved before a master in chancery, by P. S. when the name oí P. S. does not appear as an instrumental or attesting witness, is not evidence.</p> <p>A hook of registry of mortgages is not evidence to prove the existence and contents of a mortgage; the original must be produced on the trial, or its loss or destruction shewn or absence accounted for on common law principles.</p> <p>The destruction of the mortgage cannot be proved by an entry in the margin of the book of registry which contains the abstract of the mortgage’ made by the clerk, stating that the mortgage was destroyed.</p> <p>If a person enters into land under a tenant who is m possession, and with his consent, he cannot impeach the title of the landlord. If he enters as an intruder, or against the consent of the tenant in possession, lie may set up a title in himself; but ho cannot set up an outstanding and subsisting title m -a third person, under whom he did not enter.</p>

<p>In an action of covenant, where the covenant or agreement is the foundation of the action, and not merely matter of inducement, the declaration should contain a proferí in curia of the agreement set forth, or an excuse for the omission of it.</p> <p>The words of reference, “as by the said covenant and agreement, reference being thereunto had, may more fully appear,” inserted in the declaration, after the statement of the contents of the instrument, are no profort, nor sufficient to supply the want.</p> <p>The declaration in an action of covenant, should shew that the agreement on which it is founded, was originally sealed by the defendant, and remained under seal at the time of declaring or accounting for the omission of such averment. It is not sufficient to say,' “ and for the faithful performance of the said covenant and. agreement, the said parties did thereunto set their hands and affix their seals.”</p> <p>Where an instrument of writing is what is technically called an instrument inter partes, that is, expressed to be made between the parties who are named in it, as executing it, in such case, it is a settled rule, that although a covenant be expressed in the instrument for the benefit of a third person named in it, an action can be brought in the name of one of the parties only, and not in the name of such third person.</p> <p>Where a special request is not necessary to impose on the defendant the obligation to pay, nor to render him liable on his covenant, it is not necessary to be averred.</p>

When this cause was called for trial at the Salem Circuit in December, 1827, there waá an intimation that the record was not entirely complete by reason of the plea not being furnished in proper time nor according to promise as was alleged on the part of the plaintiff. The defendant did not admit this statement to be altogether correct, but the parties agreed to let the cause go off till next morning. The record was then brought into court and the parties went to trial.

<p>This court will not order satisfaction of a judgment to be entered, unless the proof of payment thereof is full and satisfactory.</p>

<p>' A state of demand, claiming a certain sum of money, “ For that the ■ defendant used and occupied a messuage in the township-of Woolwich, from the 25th of March, 1823, to the 25th of March, 1824,” is insufficient.</p> <p>So also, a state of demand, claiming a sum of money from the defendant, “ Because he used and occupied certain land in the same township, on which was removed a house, the property of the defendant, from the 8th of November, 1825, to the 12th April, 1828," is insufficient.</p>

<p>If after an appeal has been taken from a judgment rendered by a justice of the peace in favor of a single woman, the appellee marries, she cannot move to dismiss the appeal, without previously causing her husband to be made a party to the suit.</p> <p>In such a case, on a certiorari brought to reverse the order of the Common Pleas dismissing the appeal, this court cannot look into the transcript of the justice, to ascertain whether his proceedings are correct, nor can they enquire into the alleged sufficiency of the reasons for dismissing th'e appeal.</p>

<p>A person who is unable to write his name but makes his mark, is notwithstanding, a competent witness to the execution of a will.</p> <p>Proof that the testator acknowledged the mark or name to the will, as his, in the presence of the witnesses, is not sufficient proof of the actual signing of the will in their presence, required by our statute of wills.</p> <p>Our statute requires that the will should be published in the presence of the witnesses, either wholly by the testator, or by the scrivener or other agent asking questions, and the testator expressing his assent by words, or by signs, which plainly indicate his understanding of, and acquiescence in such publication.</p> <p>If one witness testify expressly to the fulfillment of every ceremony required by the statute, it will be sufficient.</p>

<p>Upon a demurrer to the whole declaration, if one count be found good,, however defective the others may be, the demurrer must be overruled and judgment given for the plaintiff.</p> <p>In an action of assumpsit, brought by A. against B. for the use of 0. a. count for money had and received, in the usual form with these variations-“for so much money by the said B. before that time had and received to and for the use of the said A. who sues as aforesaid, and being so indebted, the said B. in consideration thereof, afterwards, to wit, on &c., undertook, and faithfully promised the said A. who sues as aforesaid, to pay him, &c.,. is sufficient.</p> <p>A bill of exceptions cannot be taken on the argument and decision of a demurrer to pleadings.</p> <p>In an action of trespass on the case, upon promises, the court may assess-the damages on an interlocutory judgment without a writ of enquiry is-demanded by one of the parties.</p>

This was a writ of error to the Court of Common Pleas of the county of Warren to reverse a judgment rendered in an action of trespass on the case, brought by Brugler the defendant in error against Fries the plaintiff in error, for the seduction of his daughter.

This was a certiorari to remove into this court the judgment and proceedings in ail attachment which had' been issued by a justice of the peace against Thomas Croxall at the suit of John Hutchings, upon the following affidavit : John Hutchings being duly sworn, &c., saith, that he verily believes that Thomas Croxall, of, &c., is justly indebted to him in the sum of forty-three dollars ; and this deponent further believes the said Thomas absconds from his creditors, and is…

This was a certiorari to the Court of Common Pleas of the county of Hunterdon, to remove the proceedings in the matter of discharge of Samuel G. Opdycke, as an insolvent debtor. Upon the return of the writ,

<p>If a prior execution is kept on foot by color and for fraudulent purposes, a subsequent execution levied upon the same goods will be preferred ; and if the personal property has been sold under the first execution, the court will direct the money raised by the sale to be paid to the second execution creditor.</p> <p>This court has the power, in a summary way, to adjust priorities among contending executions, and to dispose of moneys arising from sales thereon.</p> <p>But where real property has been levied upon and sold by virtue of a second execution, and the first execution creditor^applies to have the proceeds of the sale of the real property applied to the payment of his execution, the court will not order the proceeds of the real estate to be paid to him, because, if by virtue of his judgment and execution, he has a lien upon the real estate, the sale under the subsequent judgment and execution, will not defeat or prejudice it.</p>

<p>Proof of the service of a notice of taking affidavits to be used on the argument of a cause, may be made viva voce, at the bar of the court where the affidavits are offered to be read.</p>

<p>The court will not impose upon a party applying for a commission to examine witnesses out of the State, the terms of payment of costs to his adversary.</p> <p>Motion for security for costs overruled.</p>

<p>The Orphans’ Court are not authorized to divide the guardianship of a minor and commit his property to one and his person to another.</p> <p>An order of the Orphans’ Court revoking letters of guardianship so far as relates to the person of the minor, and leaving them in full force as regards his estate, is erroneous.</p>

<p>When a tenant whoso term has expired by efflux of time, instead of quitting tiie ]'remises as lie ought to do, remains in possession, holding over, he is a wrong doer, and may be treated as such by the owner, his landlord; and the landlord may immediately maintain an ejectment to recover the possession without giving a notice to quit.</p> <p>But by tiie consent of bis landlord bis tenancy may be continued, and if such continuance, by consent, be without any fixed limit, lie becomes a tenant from year to year.</p> <p>The mere unbroken silence and inaction of the owner, will not improve or enlarge the character of the tenant’s possession.</p>

<p>In an action of debt on bond, upon a plea of payment post diem, the propositions to be established by the defendant, are first, the payment of the money, second, the application of such payment to the bond in question ; and the debtor may first shew the general payment, and then apply it to-the specific object.</p> <p>The defendants may ask a witness whether he had not heard the plain" tiffs, or either of them, admit, that the defendants had made payments upon-, certain bonds held by the said plaintiffs against the said defendants, or anything to that effect.</p> <p>The defendants may also ask a witness, “whether the plaintiffs, or either-of them, had not acknowledged to him that they had received of the defendants several large sums of -money, amounting to six thousand dollars or-thereabouts.</p>

<p>If a justice after bearing a cause, takes time to consider tlie same, he must either make a regular adjournment to a particular day and hour, or give notice to the parties of the day and hour when the judgment will be rendered.</p>

<p>A deed acknowledged before a proper officer who certified that the grantors acknowledged the same “ to be their act and deed for the uses and purposes therein mentioned,” instead of using the language of tire statute, “ that they signed, sealed and delivered the same,” &c., may be received in evidence.</p> <p>Where a judgment of a court of law, or a decree of a court of chancery, forms a link in a chain of title, the fact of the existence of such judgment or decree, may be shewn by the record, in controversies with third persons, as well as with parties.</p> <p>In an action of ejectment brought by the purchaser under a decree of the Court of Chancery, and a fi. fa. and a sale thereon, to recover possession of the premises, the defendant in execution whose property was sold, may be a witness for the plaintiff in ejectment.</p> <p>The simple fact that a person took actual possession of the premises, may be proved by parol, though he went into possession under an agreement in writing.</p> <p>In this action the plaintiff’s attorney may prove the time of issuing the original declaration in ejectment, without the production of the paper, the question in dispute being merely as to time, and not involving the contents of the paper.</p>

<p>If an execution is delivered to a sheriff four days before his term of office expires and he has the means and opportunity of levying it upon the property of the defendant, and omits to do so to the prejudice of the plaintiff, he thereby renders himself and his sureties responsible.</p> <p>A sheriff who levies a fieri facias on the estate, real or personal, of a defendant, is to finish the execution of a writ, although his term of office afterwards expires; and if he neglects so to do, or if having afterwards made sale, be refuses or neglects to pay over the moneys, his sureties in the official bond in force at the time he received the execution will be responsible.</p> <p>If an execution remains in the hands of a sheriff wholly unexecuted, until by a new election he is again charged with the office, it becomes his duty to execute the writ and make due return; and an omission to perform such duty will constitute a breach of his official bond.</p> <p>A breach.of duty by a sheriff in neglecting wholly to execute an execution, does not necessarily preclude or prevent the' occurrence of a subsequent</p> <p>bx-each *of duty by his successor, into whose hands the writ may come</p> <p>unexecuted,, in neglecting to execute it; nor by the same person holding the office of sheriff under a new election.</p> <p>In an action against the sureties of a sheriff on his official bond, if the breach of duty charged, consists in not levying on the goods and lands of a defendant at the-time an execution was delivered to him; it should he shewn in the assignment of the breach that the neglect was after the execution of the bond on which the action is brought; and also that the defendant then had goods or lands whereon the sheriff might have levied.</p>

<p>If A. enters into an agreement with B. to clo a certain piece of work, and to pay B. for procuring materials and workmen for building machines (necessary to accomplish the object), the payment to be made to B. And B. purchases the materials of 0. in his own name upon credit, and receives from A. the money to pay for them, hut instead of paying for the materials, appropriates the money to his own use, 0. cannot maintain an action against A. to recover the value of the materials sold to B. although the materials thus made, came to A.’s use.</p> <p>To maintain assumpsit for goods sold and delivered, proof must be made that the goods were actually sold to the defendant, or delivered at his request.</p>

<p>The defendants in certiorari, Green and Johnston, as overseers of the poor of the township of Trenton, in the county of Hunterdon, and in that name brought an action of debt against Taylor, the plaintiff, before a justice of the peace, to recover from him a sum of money expended by them as such overseers, “ for boarding, lodging, washing and attenclanco of M. A. B., an apprentice of the said David Taylor, at the poor house of the township of Trenton, from the first of December, 1829, to the 15th of February, A. A. 1830, both days inclusive, at four dollars per week, amounting to forty-four dollars. A judgment was rendered by the justice in favor of the plaintiffs below, Green and Johnston; Taylor thereupon brought this certiorari; and Ewing, for the plaintiff, among other reasons for reversal, relied upon the following :</p> <p>That the action, if any could be sustained against the defendant below, should have been brought by the township of Trenton, in its corporate capacity and in its corporate name, and not in the name of the overseers of the poor, and in support of this position, he cited Shotwell v. Thornall, 1 Penn. Pep. 136.</p>

The defendants in certiorari, sued South before a justice of the peace, upon the following state of demand : “ The plaintiffs demand of defendant, for due bill given to deceased, bearing date April 6th, 1826, for thirteen dollars and thirteen cents, on which there is a balance of principal and interest of eight dollars and twenty-three cents.

<p>An entry in the justice’s transcript after the names of the parties, in the words following: “ Summons in debt, thirty-one dollars and twenty-nine cents, issued February 25th 1830,” is a substantial compliance with the statute which requires the justice to enter in his docket, “the style and nature of the action.”</p> <p>This court will not reverse a judgment confessed in the court for the trial of small causes, because the state of demand is defective.</p>

<p>If tlia charge -of the justice in an action of unlawful detainer, is erroneous in a material point, the judgment will be reversed.</p> <p>If a tenancy of two or more defendants, is averred in the complaint, such tenancy should be proved as averred.</p> <p>If two persons are alleged in the complaint to be tenants, and to be in possession of the premises, when one of these only was tenant, or in possession of the premises, one of the defendants cannot be found guilty and the other not guilty, hut a verdict should be rendered in favor of both defendants.</p>

This case came before the court on a rule- to shew cause why a'verdict rendered at the Monmouth Circuit, in favor of Samuel G-. Wright, the plaintiff, should not be set aside.

<p>An attorney in fact, i?, as between tlie plaintiff and defendant, a competent witness to prove the authority to himself to appear as attorney in the suit.</p>

This action was tried, at the June Circuit, 1829, for the county of Middlesex. The declaration contained several counts. The first count was on a promissory note dated 12th December, 1825, for seven hundred and fifty dollars, payable sixty d.iys after date, to John N. Simpson, or order, and by him endorsed to the plaintiffs.

<p>Though the appellant’makes the affidavit .required by the act of November 23d, 1821, to enable him to examine a witness on the appeal who was not examined before the justice, yet if it appears by the proceedings in the cause that the witness offered on the appeal or the facts intended to be proved by him, must have been known to the appellant previous to the trial before the justice, such witness ought not to be received on the trial of the appeal.</p>

<p>To a pciro facias brought to revive a judgment rendered by default, the defendant may plead specially for the protection of his person, a discharge as an insolvent debtor obtained on the same day that the judgment by default, in the original action, was rendered against him.</p>

<p>Unless the evidence in favor, of the losing party clearly outweighs the evidence for the party in whose favor the verdict is found, the verdict will not be set aside.</p> <p>A day-hook of one of the defendants, in which entries were made in tho presence of the plaintiff and shown to him, and to which he made no objection at the time, may, m connection with other evidence, bo road to the jury</p> <p>The mere fact of some of the jurors being for a time separated from their fellows, is not, in a civil action, a sufficient ground to set aside a verdict.</p> <p>Nor the fact, that the jurors after they retired to deliberate, made a groat noise and confusion.</p>

<p>Nil debet is not a sufficient plea in debt on a bond setting out the condition and breach.</p> <p>There are two kinds of deputies of a sheriff; a general deputy, or under sheriff, who by virtue of his appointment has authority to execute all the-ordinary duties of the office of sheriff; and a special deputy who is an officer pro hae vice, to execute a particular writ on some certain occasion. The-former is bound to take an oath of office, and file his appointment; but the latter is not.</p> <p>*The legislature in requiring the Court of Common Pleas to 11 mark and lay out the bqunds and rules of the prison in their several counties,” did not intend to use the word mark in a literal sense; they meant by it, to point out, to settle, to define, to describe.; and the bounds therefore may be sufficiently marked and laid out, by course and distance, without fixing any visible marks or boundaries on the ground.</p> <p>The mere production of a writ bearing teste, prior to the cause of action,, does not prove that it was actually issued before the cause of action arose.</p> <p>The true time of issuing process may be shown notwithstanding its teste.</p> <p>It is not competent for a plaintiff in error, to draw into question, on a bill of exceptions, points not raised nor objected to, on the trial.</p> <p>The rules of pleading do not require the day to be laid on or after the act done, when the time is not material nor necessary to be proved exactly as-laid.</p> <p>In an action of debt on bond with special condition, and an assignment of breaches, the damages laid in the conclusion of the declaration, are merely nominal and the jury have a right to exceed that amount in the assessment.</p> <p>If the amount of the damages and costs added together, exceeds the sum claimed" in the conclusion of the declaration, it will not render the judgment erroneous.</p>

<p>To a declaration in assumpsit containing the common money counts, the defendant cannot, under the plea of the general issue, give notice of special mattex-s, the object-of which is to shew that tho money received by him to the use of the plaintiff as alleged in the declaration, was not received to the use of the plaintiff, but was in truth received to his own use; such a defence is only a denial of the contract as stated in the declaration, and amounts to the general issue.</p> <p>Our statute to facilitate pleadings (Sév. Lewis, 404, sea. 2), was not intended to authorize, or permit the defendant to give notice of special matter when the general issue is the apt and only plea; but to enable him instead of using a special plea, to introduce matters proper for such plea, with more simplicity and less regard to technicality and form, by way of notice subjoined to the general issue.</p> <p>' A motion to strike out notices subjoined to the general issue, is not too late though the cause has been carried to trial at the circuit and not tried.</p>

This was an action of trespass on the case. The declaration sets forth in substance— 1st. .That the plaintiff, Hunt, was possessed of. a tract of land in Middlesex county, containing ten acres, adjoining a certain creek there flowing and accustomed to flow, and that the defendant intending to injure him, and to deprive him of the use and profits of the land, and to put him to great charge, whilst he was possessed thereof, the defendant wrongfully kept, continued and…

<p>A party has the same time to plead, after oyer, as he had at the time it was demanded.</p>

<p>In deducing title under a sheriff’s sale, the judgment and execution are to he shown, as well as the deed from the sheriff to the purchaser.</p> <p>If the deed from the sheriff to the purchaser, (under which the plaintiff claims title) recites an execution on-a judgment for 784 dollars 68 cents of debt, and 5 dollars 78 cents of costs, and the judgment produced is for 784 dollars 68 cents of debt, and three dollars of costs, the plaintiff fails to shew the authority of the sheriff to sell, because he does not shew that authority under which the sheriff declares he did sell.</p>

<p>If the transcript of the justice, sent to the Court of Common Pleas, with the appeal papers, omits io state that the defendant was present at the time judgment was rendered, the Court of Common Pleas should permit the justice, if he is present in court, and no delay would lie occasioned thereby, to amend his transcript in that particular, and certify the fact as it really was.</p>

certiorari. This was an action of debt commenced originally before a, justice of the peace, by John Combs against Ebenezer Price, for a store account, amounting to $77.20.

<p>A verdict will not be set aside where the weight of evidence is in favor of it.</p> <p>Where the verdict is against the weight of evidence, yet if there is some evidence both positive and circumstantial, to support the verdict, if the court does not see that the jury mistook the truth or that justice has not been done, the verdict will not be disturbed. Per Dkake, justice.</p>

<p>Proof that the complainant leased the premises to A. for a. term of years expiring on the 1st of April, 1830; that the defendant went into possession of the premises, while in the possession of the said A. the tenant of the complainant before his term had expired, with the consent of A. and against the will of the complainant; that on the 5th of April, demand and notice in writing for the delivery of the possession were made by the complainant; and that the defendant refused to quit and continued to hold the premises^ is sufficient to make out a prima facie case and right to recover in an action of unlawful detainer.</p> <p>The estate or merits of the title, cannot be inquired into in an action of unlawful detainer.</p> <p>The defendant will not be permitted to shew that the complainant has an estate in the premises, different from that which he avers in the complaint.</p> <p>How far variance might be urged if the complainant had himself, on the trial, shewn the nature of the estate, or had been from the exigency of the case compelled to disclose it, qnere:</p>

<p>Upon the return of the certiorari in this case which brought up the proceedings in an action of forcible detainer, the attorney of the' plaintiff in certiorari, obtained a rule upon the justice to certify whether there was any evidence produced at the trial of the holding or keeping of the •premises by force, or strong hand or weapons or violence or menaces or terrifying words, circumstances or actions having a natural tendency to excite fear or apprehension of dangér. The justice replied that he did not recollect distinctly what the witnesses said. Whereupon, a rule was granted to the plaintiff in certiorari, to take affidavits to prove what was the nature of the evidence offered at the trial upon this point. Affidavits were accordingly taken, by which it was shewn that no evidence was offered at the trial of the holding of the premises by force or strong hand or weapons or terrifying words, circumstances or actions having a natural tendency to excite fear or apprehension of danger.</p>

This was a certiorari to remove the judgment and proceedings in an action of debt before a justice of the peace, and was submitted to the court upon the following state of the case agreed on by the attorneys of the parties. On the 14th day 'of- April, A. D. ■ 1830, Isaac Hall of the county of Salem, instituted a suit in the court of Jacob W. Mulford, esq., one of the justices of the peace of the county of Salem, against Isaac Day.

Ill the year 1827, an action of ejectment was instituted in the name of John Den on the demise of Henry Demott, James Slater, John Vreeland,… Held: were made defendants. The cause notice for trial at the Circuit Court of Bergen county, in October, 1829, when the following stato of the case was agreed on by the parties and their respective counsel: The defendants confessed the lease, entry and ouster set forth in the declaration, insisting upon their rights according to the…

<p>A person who is so situated in relation to the property in controversy, as to be liable to refund the money received by him from the plaintiff for the property sold in case of the failure of the plaintiff to recover, is not a competent witness for the plaintiff.</p> <p>*A person who is under an express agreement to pay part of the costs of the suit, in case the plaintiff should fail, is interested in the event of the suit, and ought not to be admitted as a witness.</p>

<p>If a person having a residence in this state, goes out of it, on his lawful business, and during his absence a summons is served, by being left at bis bouse, and the justice in the absence of the defendant, and before his return to his residence, proceeds to hear the cause, and render judgment against him, this court may reverse the judgment if they are satisfied that injustice has been done the defendant.</p>

<p>In the case of a promissory note, payable on demand, the time when the statute of limitations begins to run, should .he computed from the making of the note, and not from the time when the holder shall make an actual demand of payment.</p> <p>To make an acknowledgment, of a person, sued as administrator, available to take a note, drawn by his intestate, out of the statute of limitations, it should be shewn that he was administrator at the time of the alleged acknowledgment.</p> <p>In an action oil a promissory note where there are two pleas, non assumpsit and non assumpsit infra sex annos, the plaintiff may be nonsuited if he fails to shew a promise within six years, though he proves the execution of the note by the defendant.</p>

<p>An action for driving the defendant’s wagon and horses “against the wagon and horses of the plaintiff, witli such force and fury, as to cause them to break loose from Ins wagon and run away, and the said horses, being so frightened, and in running, were greatly bruised, wounded and injured, and the harness broken; by means whereof the plaintiff sustained damage, &c,” should he trespass, and not trespass on the case.</p>

<p>To enable tlie master of an apprentice to maintain an action against a clergyman under the Dili section of tiie act concerning marriages (Rev. Laws 180) for mairying a minor under the age of twenty-one years, bis servant and apprentice, without his consent and without Ins certificate in writing under bis band as directed by said act, be must aver m bis declaration that the said minor bad no parent or guardian living.</p>

<p>A covenant by a grantor, that at the time of the sealing and delivery of the deed the premises conveyed are not incumbered by any mortgage or by any incumbrance whatsoever, is broken as soon as it is made and before eviction or disturbance, if at the time of the execution of the deed the premises were incumbered by an existing unsatisfied mortgage.</p> <p>To maintain an action on such a covenant, it is not necessary that the grantee should wait until eviction or disturbance, or until be has paid the debt or interest secured by the mortgage, or has been impleaded, prosecuted or put to costs, trouble or expense.</p> <p>The right of action upon the breach of such a covenant is a chose in action, and as such, not assignable at common law, nor by statute so as to enable the assignee to maintain a suit in his own name.</p>

<p>In an action of forcible entry and detainer, if any evidence of force within the meaning of the statute was given, the Supreme Court will not interfere. But if no evidence of force was produced, if all the acts done by the defendant 'do not in legal contemplation amount to a forcible detainer, it is the duty of this court to relieve the aggrieved party from an illegal and erroneous verdict.</p>

<p>The delivery by a. notary’s clerk of a notice of protest directed Thomas 0. Butler, Jr., to a Mr. B. with whom the clerk was unacquainted, but who informed the clerk it was his brother to whom the notice was directed, that he was going home and should see his brother, and would give him the notice as soon as it could be sent bjr mail, is not a sufficient notice to charge the endorser.</p> <p>Putting a notice into the post office in time for the first mail, directed to the defendant at Dashville, New Jersey, when the defendant’s residence was at Dashville, Ulster county, New York, (the place of the defendant’s residence being known to the plaintiffs, though not to the notary’s clerk who sent the notice) is not sufficient to charge the endorser.</p> <p>A letter misdirected, when information was readily attainable and when the residence was actually known to the plaintiffs, cannot be excused by any want of actual information of the notary’s clerk, for in this part of the transaction the notary is so much the mere agent of the endorsees, that he must be deemed to have knowledge of whatever, in respect to the place of residence, was known by the former.</p> <p>Proof that the notice of protest was seen in the hands of the defendant, (the endorser) about seven months after the note became due, will not raise a presumption that it came to the defendant’s hands by due course of mail, when the letter containing the notice was directed to Dashville, New Jersey^ instead of Dashville, New York, the place of the defendant’s residence.</p> <p>*The notice is of the essence of the contract; and ought not to rest upon presumption and inference. Legal and sufficient evidence of its existence ought to be given.</p> <p>When the residence of the endorser is known and he has actually given orders as to the mode of directing his letters, any deviation therefrom, or from the ordinary course of transmission to the place of his residence, is assumed at the risk of the holder of the note.</p>

In this case the plea had been relinquished at the circuit, a judgment entered, habere facias possessionem issued and executed, upon the return of which, Saxton for the defendant, upon an affidavit of the defendant, that the sheriff in executing the writ of possession, had dispossessed him and put t-he plaintiff in possession of a parcel of land to which the plaintiff had not title, obtained a rule to shew cause, ‘‘ why a writ of restitution should not be awarded to restore…

<p>. This was a rule to shew cause why a prior execution in favor of Thomas 0. Sterling, against Joseph W. Van Gieve, should not be postponed until a subsequent execution against the same defendant, in favor of Westley P. Hunt, should be first satisfied. The following state of the case was agreed upon by the attorneys of the parties, viz:</p> <p>That in the term of May, in the year of our Lord one thousand *eight hundred and twenty-six, a judgment was entered in the Supreme Court in favor of Thomas 0. Sterling against Joseph W. Van Cleve, for the sum of $2,662 and four dollars costs. That on the eighteenth day of May, returnable to the term of September in the same year, an execution was put into the hands of the sheriff of the county of Hunterdon, and a levy made thereon (pro utthe said execution and return.)</p> <p>That after the levy was made, the plaintiff in execution,. Thomas'O. Sterling, agreed with the defendant to suffer the-goods to remain in the possession of the defendant until the first day of April, A. D. 1830, in consideration that the defendant would pay to the plaintiff a rent therefor equivalent to their being kept in good order and of the same value as before the levy; which agreement was communicated by the said Thomas 0. Sterling to the sheriff, and in consequence thereof the said goods and chattels remained in the possession and occupation of the defendant after the said levy in the same manner as before; and that on the afternoon of the 26tti of October, A. D. 1829, Westley P. Hunt-obtained a judgment against the said defendant Joseph W. Van Cleve, upon bond and warrant of attorney, in the Common Pleas of Hunterdon, and on the same evening issued execution and placed it in the hands of the sheriff of the said county of Hunterdon with directions to proceed thereon immediately.</p> <p>That the plaintiff in the first execution, on the said 26th day of October, 1829, sued out an alias fi. fa. on his said judgment against the said Joseph W. Van Cleve, and placed it in the hands of the sheriff of the said county of Hunter-don a few hours before the execution in favor of the said Westley P. Hunt against the said Joseph W. Van Cleve was-placed in the sheriff’s hands ; that the said sheriff, by virtue of the said alias fi. fa. made a new levy, pro ut the same, and inventory and return thereon; but by the consent of the plaintiff, Thomas 0. Sterling, and in pursuance of an agreement in writing endorsed upon a copy of said inventory, October 28th, 1829, between the said Thomas 0. Sterling and Joseph W. Van Oleve, et. al. the sheriff suffered the said goods and chattels to remain in the possession of the said Joseph W. Yan Oleve; that the said sheriff of the said county of Hunterdon, by virtue of his said execution *in favor of Westley P. Hunt, and of the said alias fieri facias in favor of T. C. Sterling, advertised the personal property for sale at the suit of several plaintiffs on the day of February, 1830.</p> <p>On the day of February, contrary to the express direction of Westley P. Hunt, and without any direction of Thomas 0. Sterling, the sheriff, being confined to his bod by sickness, adjourned the sale until the day of March, 1830. Between the first day fixed for the sale and the day of adjournment, a venditioni exponas was issued on the part of T. 0. Sterling. On the said day of March the sale took place, at which time the said Joseph W. Yan Oleve openly forbade a sale of his property at the suit of, and under the execution of T. 0. Sterling, in pursuance of the agreement before mentioned. The sheriff proceeded with the sale.</p> <p>It is further agreed, that at the time of the delivery of the alias fi. fa., Yan Oleve wTas indebted about $300 for rent, and that the property levied on sold for $574.43.</p> <p>If the Supreme Court shall be of opinion, upon the foregoing statement of facts, that the execution in favor of Thomas 0. Sterling should be postponed until the execution in favor of Westley P. Hunt is satisfied, then the said sheriff is to be directed to apply the moneys arising from the sale of the said personal property towards the payment of the said execution in favor of Westley P. Hunt; if not then he is to pay the same to the said Thomas 0. Sterling.</p>

<p>The weekly sum required by the 6th section of the “ act for the relief of persons imprisoned for debt," .Rev. Laws, 218, to be paid by the dissatisfied creditor, to the insolvent debtor, must be paid on fixed days, and which can in no instance, be more than one week asunder.</p> <p>The term “ on application,” used in that section of the act, does not necessarily imply an application in writing.</p> <p>• The debtor need not give notice to his opposing creditor of his application to three-judges to be discharged for neglect on the part of the creditor to pay his weekly allowance.</p> <p>It is not necessary that the assignment (mentioned in the 5tb section of the act, Rev. Laws, 218), should be filed in the clerk’s office prior to the making of the order for discharge.</p> <p>Though three judges meet, at the request of the debtor on the 31st of July, and receive proof of the failure of the weekly allowance, take an assignment from him and then execute an instrument under their hands and seals, reciting what was done, and declaring him to he an insolvent debtor, according to the several acts of the state of New Jersey, inasmuch as this instrument contained no order for the discharge of the debtor, the judges may meet again on the next day, and reciting in another instrument what had been done on the day previous, may add thereto an order for the discharge of the debtor from imprisonment.</p>

<p>Where land which has been levied upon by virtue of a prior judgment- and execution, is first sold under a subsequent judgment and execution, thereon, and is afterwards sold by virtue of the first judgment and the execution thereon, the title of the purchaser, under the first judgment and', execution, though under the second sale, will prevail over the title acquired, by the purchaser at the first sale, but under the second judgment and execution.</p> <p>The word “ executed" in the thirteenth section of the “ act making lands-liable to be sold for the payment of debts,” Rev. Raws, 433, means levied.</p> <p>Though a sheriff, in his conditions of sale, undertakes to adjourn the sale for a fortnight, in case the property should be bid off by any person who-should neglect or refuse to comply with those conditions, and the property is struck off to one of the defendants who refuses to comply with the conditions of sale, and the sheriff, instead of adjourning for a fortnight, immediately sets the property up again and strikes it off to the lessor of the plaintiff, who is the highest bidder, and executes to him a deed for it accordingly, this does not render the sale a nullity, and therefore cannot be given in evidence by the defendant in an action brought by the purchaser to recover the possession of the lands purchased.</p>

<p>A testator devised to the defendant a lot of land, “ beginning in Joseph. Wall’s line at the corner between him and R. Chambers, thence as the line runs till it comes to the middle of the road leading from Vanderveer’s tavern to Esquire James’, thence down said road to Joseph Wall’s, all the land to the east of said road that I own in said tract to Joseph Wall’s. It appear - ing, by parol evidence *that there were two corners in Joseph Wall’s line between him and R. Chambers, answering so exactly to the description in the will that no construction upon the instrument could show which of the two the testator intended. Parol evidence was admitted to effect that purpose. But parol evidence was held not admissible to show that by the words “ as the line runs,” used in the devise, the testator meant “Wall's line,” because there is no latent ambiguity in these words.</p> <p>A latent ambiguity arises when there are two things or persons both answering exactly to the thing or person described in the will, and parol evidence of what the testator said may, in such case, be lawfully adduced to show which of the two he intended; but it cannot, in any case, be allowed to show that he meant a thing different from that disclosed in the will.</p>

<p>A decree of the Orphans’ Court ordering the account of executors (which had been previously allowed and confirmed) to be opened for re-statement, and directing the defendants to file exceptions in ten days, and that the account be referred to auditors, &c., is a final decree within the meaning of the statute, Rev. Laws, 787, sec. 33, and it may be removed by certiorari into the Supreme Court.</p> <p>The true meaning of the words “ to the satisfaction of the said Orphans' Court," in the 32d section of the act to establish the Orphans’ Court, Rev. Jmws, 787, is not to enable that court to dispense with proof; but to indicate to them that the proof should be clear and satisfactory, and that they ought not, in a doubtful case, to open an account.</p> <p>If the Orphans’ Court decree accounts of executors to bo opened, “ because they were satisfied there was an apparent mistake," and the whole of the evidence laid before that court consisted of written documents which were removed by certiorari to the Supreme Court, and upon the face of which there was no mistake, this court will reverse the decree.</p> <p>Tlio propriety of charging a trustee with interest must depend on other facts than the mere circumstance of having the money of cestui que trust.</p> <p>The mere fact that the Orphans’ Court have allowed to the executors, for their commissions, a sum, which, without explanation, would appear to another court to be too much, would not authorize the opening of the account.</p>

<p>An affidavit of the acrvico of a declaration in ejectment, which states that the declaration was served on the daughter of the tenant, but does not shew that such service was made on the premises in question is insufficient.</p> <p>Such an affidavit may be amended.</p> <p>Where a judgment against a casual ejector is set aside in consequence of a defect in the affidavit proving the service of tlio declaration in ejectment, if the tenant lias been turned out of possession, a writ of restitution will be ordered with costs.</p>

<p>A mortgagee may maintain an action of ejectment to recover possession of the mortgaged premises. ■ The mortgagee does not divest himself of the right to maintain an ejectment by filing a bill to foreclose in connection with a second mortgagee, procuring an order of sale, and accepting the sheriff’s deed for the premises. If the sheriff’s sale is valid, the mortgagee, having become the purchaser, has a right to recover by virtue of the purchase and conveyance; if the sale is not valid, his mortgage title remains.</p> <p>If the tenant in possession holds under the mortgagee by lease, subsequent to the mortgage, as tenant from year to year, he is not entitled to notice to quit.</p>

This cause being at issue and coming on to be tried at theHunterdon Circuit, in the term of October, 1830, before' Chief Justice Ewing, the parties and their attorneys agreed upon the following state? of the case : John P. Stout*?obtained a judgment in the inferior Court-of Common Pleas of the county of Hunterdon, in the term. of February, 1816, against Samuel Stout, in a plea of debt for three thousand dollars of debt, and three dollars costs of suit, upon which judgment an…

<p>To entitle a plaintiff in ejectment to give in evidence a sheriff’s deed, it is necessary to produce a record of the judgment and execution.</p> <p>If the judgment produced in evidence differs from that recited in the execution, or in the sheriff’s deed, it is the same thing as if no judgment was produced, and the sheriff's deed cannot be received in evidence.</p> <p>The general rule that the judgment, as well as the execution and sheriff's deed, must be proved, applies not only where the ejectment is brought against a third person, but also where it is brought against the origina1 defendant named in the judgment and execution.</p> <p>After a judgment has been actually signed, no addition can be made to it by the insertion of the costs or the filling up of the in toto attingunt clause ; nor can the costs be rightly put in the execution unless they had actually formed a part of the judgment.</p> <p>The doctrine of variance applies not only to actions founded on contract, but to actions of tort.</p> <p>• In a modern deed, the'recital of due advertisement, being in the nature of a certificate by an officer, of a fact within his knowledge, is received as prima facie evidence, and dispenses with the proof which, without such recital, would be required, bio such presumption is made where there is no recital.</p>

<p>If pari, of tlie items of file plaintiff’s demand are of more than six years standing, and there is no evidence of a new promise, they are barred by file .statute of limitations.</p> <p>And though the defendant files a set off, containing an account of charges and dealings between the parties, after a lapse of several years, wholly disconnected with ihe antecedent transactions, this will not save the items of the plaintiff’s account from the prescribed limitation.</p> <p>The exception in the statute of limitations, in regard to merchant’s accounts, lias been extended, by an equitable construction, so as to embrace accounts of other persons, not merchants, between whom there have been mutual dealings and credits, some of which are of more than six years, and others less. This equitable extension of the statute may very properly take place in case of mutual current accounts, or wherever any such connection between, them appears in tlieir nature, or from evidence, that the latter might fairly be considered as an admission of there being some unsettled account between the parties. But where the transactions are remote, and there is nothing in their own nature, or the evidence, to connect them, there can be no propiiety in extending the exception of the statute so as to embrace them.</p> <p>An acknowledgment to take a ease out of the statute of limitations, must be an acknowledgment of a subsisting debt; in which case the acknowledgment will be evidence of a promise to pay; but if any thing he said at the-time to repel the presumption of a promise to pay, it is insufficient.</p>

<p>Tlio Supreme Court, as a general rule, and without any suspicion of malpractice, are not authorized to disregard the return made by the Court of ■Common Pleas, because it is drawn up in the hand writing of one of the .counsel in the cause.</p> <p>On the trial of the issue between an insolvent debtor and liis opposing ■creditor, formed under the provisions of the 7th section of the act for the relief of persons imprisoned for debt, Lev. Laws, 218, the creditor may prove that the debtor has been off of and beyond the prison limits.</p> <p>*The inquiry, on the trial of the issue, is not restricted to the truth, and honesty, and fairness, or otherwise, of the surrender and disclosure of the insolvent’s estate and circumstances, but extends also to his conformity with the provisions of the act.</p>

This was a writ of error to the Common Pleas of the county of Burlington. The action below was replevin.

<p>Where an action of trespass quare clausum fregit, is brought before a justice of the peace, and the defendant pleads title, and the plaintiff thereupon commences his action in the Supreme Court, and the defendant pleads liberum. tenementum, and the plaintiff replies that the close is his freehold and not the freehold of the defendant, if the defendant gives evidence of his possession of a close in the same township in which the trespass is alleged to have-been committed, he will be entitled to a verdict m his favor.</p> <p>The ancient rule, in the action of trespassing, that where the declaration is general, without giving the name or abuttals of the close, and the defendant pleads that the close is his soil and freehold, the “ defendant, unless-there be a new assignment, must have a verdict in his favor if he prove a title to any land in the same township,” is applicable to a ease originally commenced before a justice of the peace, and the plaintiff, under a general description in the declaration, has not the power to select the place to which the evidence shall be confined.</p>

This was an ejectment in which rules to shew cause had been taken; on the part of the defendants, why judgment as in case of non-suit, should not be entered against the plaintiff for not proceeding to trial; and on the part of plaintiff, why he should not have leave to discontinue without the payment of costs.

<p>It is not necessary to give notice of a motion for a certiorari to bring up the ^'proceedings of commissioners appointed.to value the lands taken by a corporation for the use of a canal, but the court may, in their discretion, either award the certiorari in the first instance, or grant a rule to shew cause.</p>

<p>On an appeal it is not sufficient for the Court of Common Pleas to render a general judgment affirming or reversing the judgment of the justice. The judgment should be rendered and entered specifically stating both the amount of the debt or damages, and the costs.</p>

<p>The Supreme Court, by writ of certiorari, may review the proceedings of an inferior court in making an entry of satisfaction on the record of a judgment. ■*'</p> <p>If the plaintiff agree to accept forty per cent, in satisfaction of the judgment upon condition the same is paid in sixty days, and the .money is not paid within the time specified, the Court of Common Pleas have no authority to make a now agreement for the parties, or to extend the time beyond the limits which the parties have prescribed ; and if they order satisfaction to be entered upon proof of tender of the forty per cent, to the plaintiff after the sixty days and refusal by him to accept the same, and the subsequent payment of it, to the clerk of the court, the order of the Court of Common Pleas and entry of satisfaction, will be set aside.</p>